Fuller’s King Rex, read by someone who spent thirty-one years in the courts
Its coordinates: 6.2 Philosophy of Law
Lon Fuller's The Morality of Law (1964) opens with a fable about an unhappy king called Rex who fails to make law in eight different ways. He decides cases without general rules. He makes rules but keeps them secret. He legislates retroactively. His rules are unintelligible, or contradictory, or demand the impossible. He changes them so often nobody can keep up. And finally, the rules he announces and the way his officials actually act come apart.
I read it again in retirement and found it uncomfortably familiar. Not because I lived under a tyrant, but because each failure has a small, everyday version. In my years covering the sessions courts the commonest was the eighth: a notification says one thing, the police and prosecution do another, and the accused is caught between the two. The second was close behind: rules that existed in a gazette nobody could obtain.
Fuller calls these principles an inner morality of law. Hart replied, with some wit, that there could equally be an inner morality of poisoning: be efficient, avoid poisons that make the victim vomit. In other words, Fuller had described what makes law effective, not what makes it moral.
I have never been able to settle this to my satisfaction. When a law fails Fuller's tests, the person who suffers is not merely inconvenienced. He is wronged. But I cannot say exactly why that wrong is moral rather than technical. I would value the thoughts of people who have stood on either side of a courtroom, or none.